federalism
Animal, vegetable or mineral?
A lesson in judicial humility and a thought experiment about property rights
This topic may be a bit far afield for this blog, but dinosaurs are always worth considering . . . The Montana Supreme Court has resolved an intriguing dispute about ownership of fossilized dinosaur remains that turned on the question of whether those remains were or were not “minerals.” In the process, the Montana court …
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CONTINUE READINGSuing Big Oil
Which court has jurisdiction? State court or federal?
Yesterday, the Ninth Circuit ruled in favor of the plaintiffs in two climate change cases brought against the oil industry. The court ruled on a narrow but important procedural issue: whether the cases should be sent back to state court. Cities and counties should now be able to continue with the cases, in which they …
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CONTINUE READINGThe Coronavirus and the Commerce Clause
Could Congress mandate CORVID-19 vaccinations? Not if you take some Supreme Court opinions seriously.
If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said “no, Congress couldn’t do that.” What’s shocking is that this may have …
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CONTINUE READINGIn Support of Public Health Federalism
Reactionary State Responses to COVID-19 (and Other Threats to Public Health) Don’t Mean Federalism Is For Suckers
For decades, “states’ rights” has been a rallying cry of the right wing. Most Americans are familiar with the dynamics that required the federalization of civil rights law, both in the 1860s and again in the 1960s, the protection of much of our nation’s federal lands, and the national crises that necessitated the federal government …
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CONTINUE READINGFederalism Is For Suckers
Donald Trump’s Assertion That He Can Order the States Around Is Unconstitutional: But Leave Federalism and the 10th Amendment Out of It
Five days is a lifetime in politics, and especially in the age of the internet. Donald Trump has – for now – given up on saying he can order governors to “reopen” their states, but the debate surrounding it has perverted our constitutional discussion. And that needs fixing. Wags from right to left – not …
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CONTINUE READINGInslee v. De Blasio: Coronavirus Responses, Good and Bad
As it turns out, telling New Yorkers not to worry about the virus was a really bad idea.
The state of Washington seems to be a model of success in dealing with the coronavirus. What can we learn from that experience? And how did Washington’s approach differ from that of another hotspot with about the same population, New York City? Let’s begin by taking a look at how the situation developed in Washington. …
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CONTINUE READINGFederalism and the Pandemic
For statutory, practical, and constitutional reasons, states are on the front line.
The states have been out in front in dealing with the coronavirus. Apart from Trump’s tardy response to the crisis, there are reasons for this, involving limits on Trump’s authority, practicalities, and constitutional rulings. Statutory limits. As I discussed in a previous post, the President’s power to deal with an epidemic is mostly derived from …
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CONTINUE READINGBright Spots of 2019 (Yes, there were some!)
A bad year in many ways, but with promising signs for the future.
It’s been a tumultuous and often grim year in terms of environmental protection. The Trump Administration continued its onslaught against environmental protection, completing major regulatory rollbacks. Nevertheless, there were some rays of sun through the darkening clouds. State Initiatives. Progress as the state level continued, as it has throughout the Trump Administration. New York State …
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CONTINUE READINGSpotlight on San Antonio
The role of transparency in municipal climate plans
Last week, San Antonio’s City Council approved its first-ever Climate Action and Adaptation Plan. This Plan’s main benefit is its ability to track and measure GHG emissions, while also signaling to City agencies, other municipalities, and the state that it is committed to climate mitigation and adaptation efforts. This is a big win for a …
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CONTINUE READINGTrump’s Legal Challenges to the California’s Car Deal
Is there any legal basis for the Trump Administration’s actions?
Prompting rage by President Trump, California and several carmakers entered a voluntary agreement on carbon emissions from new cars that blew past the Administration’s efforts to repeal existing federal requirements. Last week, the Trump Administration slapped back at California. Although there’s been a lot of editorializing about that response, I’ve seen very little about the …
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